Kara v Australian Integrated Suppliers t/as Guven Kebab Factory - [2011] NSWWCCPD 11

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Kara v Australian Integrated Suppliers t/as Guven Kebab Factory [2011] NSWWCCPD 11
APPELLANT:		Duran Kara
RESPONDENT:		Australian Integrated Suppliers t/as Guven Kebab Factory
INSURER:		Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:		A1-5168/10
ARBITRATOR:	Mr Brett Batchelor
DATE OF ARBITRATOR’S DECISION:		25 October 2010
DATE OF APPEAL HEARING:		17 February 2011
DATE OF APPEAL DECISION:		3 March 2011
SUBJECT MATTER OF DECISION:		Proof of injury; s 4 of the Workers Compensation Act 1987; determination of liability; need for referral to Approved Medical Specialist; s 65(3) of the Workers Compensation Act 1987; admission of forensic medical reports; cl 49 of the Workers Compensation Regulation 2010
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr R Petrie instructed by Buttar, Caldwell & Co
Respondent:	Mr T Wardell of Edwards Michael Lawyers
ORDERS MADE ON APPEAL:		Paragraph [2] of the Arbitrator’s Certificate of Determination dated 28 October 2010 is revoked and is substituted with the following order: “2. The applicant’s claim with respect to permanent impairment resulting from injury to the cervical spine is remitted to the Registrar for referral to an Approved Medical Specialist for assessment pursuant to Chapter 7 Part 7 of the Workplace Injury Management and Workers Compensation Act 1998.” The balance of the matters appearing in the Certificate of Determination dated 25 October 2010 are confirmed. I direct that this determination be brought to the attention of the Approved Medical Specialist to whom the matter is referred.

BACKGROUND TO THE APPEAL

Mr Duran Kara, who is 49 years of age, arrived in Australia from his native Turkey in 1974. Following a short attendance at high school in suburban Sydney he obtained work, firstly for a period of four years as a process worker and thereafter with James Hardie Industries Ltd, as a labourer. In 1982 Mr Kara was injured whilst working with James Hardie and was absent from work, in receipt of compensation benefits, for a period of years. As a result of that injury he underwent surgery to his lumbar spine, being laminectomy and disectomy.
After his recovery from surgical treatment Mr Kara returned to work as a self-employed kebab shop proprietor. He carried on this business for a period of 12 years following which, in April 2003, he commenced work as a labourer with Australian Integrated Suppliers Pty Ltd (the respondent). On 5 December 2003 Mr Kara was injured in the course of that work when he fell. He alleges that he received injury to his right shoulder, low back and neck as a result of that fall. In May 2004 he underwent an arthroscopic procedure to his right shoulder following which, in October 2004, a surgical repair of his right rotator cuff was conducted. The repair of his rotator cuff was repeated in June 2006.
Mr Kara commenced proceedings against the respondent in 2007. Orders were sought in those proceedings in respect of lump sum payments. That claim was limited to allegations of injury to his lumbar spine, injury to his right shoulder and scarring. That dispute was settled and a Certificate of Determination issued on 22 November 2007 making provision, inter alia, for referral to an Approved Medical Specialist (AMS) for the purpose of assessing any whole person impairment with respect to Mr Kara’s lumbar spine, right upper extremity and scarring/disfigurement. That Certificate of Determination expressly noted that “Matters concerning (Mr Kara’s) cervical spine may be addressed by the parties at a later date”. A Medical Assessment Certificate was subsequently issued by the AMS, Dr Mastroianni. That Certificate, dated 4 January 2008, certified a whole person impairment of nine per cent. That figure was made up by assessments of seven per cent concerning the right upper extremity and two per cent in respect of scarring. Whilst Dr Mastroianni found that there was a whole person impairment of 10 per cent arising from the condition of Mr Kara’s lumbar spine, that impairment was found to be attributable to the injury received whilst employed by James Hardie. Following deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) a finding of nil percentage whole person impairment was made with respect to that part of his body. A Certificate of Determination was issued by the Commission on 18 February 2008 which made orders with respect to payment to Mr Kara of the sum of $11,250 in respect of nine per cent whole person impairment as assessed by Dr Mastroianni.
It seems that a further claim with respect to weekly payments, lump sum compensation and medical expenses was made against the respondent by Mr Kara. Liability in respect of that claim was declined and notice concerning that decision was issued by the insurer pursuant to s 74 of the 1998 Act on 18 June 2010. That notice disputed liability with respect to the lumbar spine upon the basis that any permanent impairment or incapacity was the result of the injury sustained whilst working with James Hardie. The allegation of neck injury was disputed upon the basis that Mr Kara suffered a degenerative condition of his cervical spine and that “no permanent impairment nor incapacity results from any injury” received whilst employed with the respondent. The medical expenses claimed were stated not to be “reasonable or necessary workers compensation expenses”.
An application to resolve the dispute concerning Mr Kara’s entitlement to compensation benefits was filed with the Commission on 29 June 2010. That application came before an arbitrator for conciliation/arbitration on 14 October 2010. The application was amended, by consent, to limit the claim to one seeking orders with respect to s 60 expenses, a lump sum with respect to an alleged further impairment suffered as a result of the right shoulder injury, and a lump sum in respect of whole person impairment resulting from the alleged neck injury.
The matter proceeded to hearing following which the Arbitrator reserved his determination. A Certificate of Determination and Statement of Reasons (Reasons) issued on 25 October 2010.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 25 October 2010 records the Arbitrator’s orders as follows:
“1.     The applicant discontinues his claim for weekly benefits, and the requirement to file a Notice of Discontinuance pursuant to Rule 15.7(3) of the Workers Compensation Rules 2010 is dispensed with.
2.     Award for the respondent in respect of the applicant’s claim for injury to the cervical spine.
3. The respondent is to pay the applicant’s treatment and related expenses pursuant to section 60 of the Workers Compensation Act 1987 in respect of an injury on 5 December 2003 to the applicant’s lumbar spine arising out of or in the course of his employment with the respondent.
4. The assessment of the permanent impairment of the applicant’s right upper extremity as a result of injury on 5 December 2003 arising out of or in the course of the applicant’s employment with the respondent is remitted to the Registrar for referral to an Approved Medical Specialist for assessment pursuant to Chapter 7 Part 7 of the Workplace Injury Management and Workers Compensation Act 1998.
5.     The documents to be referred to the Approved Medical Specialist are:
(i)     Application to Resolve a Dispute and all attachments;
(ii)     Reply and all attachments;
(iii)    Application to Admit Late documents dated 17 July 2010 and attachment
(iv)Application to Admit Late Documents dated 30 July 2010 and attached statement of the applicant dated 16 July 2010.
6.     The respondent is to pay the applicant’s costs as agreed or assessed, and for the purpose of this order I certify the matter as “complex” and allow 15 per cent uplift in costs, applicable to both applicant and respondent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred:
(a) in finding that Mr Kara did not receive injury to his cervical spine on 5 December 2003, and
(b) in failing to remit the matter to the Registrar for referral to an Approved Medical Specialist for assessment of any whole person impairment that has resulted from injury to Mr Kara’s cervical spine.
Mr Kara, in submissions on this appeal, asserts error by reason of the Arbitrator’s admission of the evidence of Dr Breit, Dr Habib and Dr Bhatia, as found in forensic medical reports as defined in cl 43 of the Workers Compensation Regulation 2003 (the 2003 Regulation). That clause, and its suggested relevance to the admission of that evidence, was not raised in argument before the Arbitrator. Since the arbitral hearing and the making of the Arbitrator’s determination, the 2003 Regulation has been repealed and replaced by the Workers Compensation Regulation 2010 (the 2010 Regulation).
The fact that the relevance of the 2003 Regulation had not been argued before the Arbitrator, and that the 2010 Regulation presently in force has changed the definition of “forensic medical report” were, as noted below, circumstances taken into account when the matter was fixed for hearing and a direction was made to the parties.

LEAVE

There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

HEARING AND ADDITIONAL EVIDENCE

A hearing of the appeal was fixed for 17 February 2011. The Commission had appointed a hearing of the appeal, in lieu of a hearing on the papers as is permitted by the provisions of s 354(6) of the 1998 Act, having regard to the following matters:
(a) the evidence before the Arbitrator included forensic medical reports noted at [9] above. No formal objection was taken to that evidence on behalf of Mr Kara. Whilst the transcript (T) of proceedings records a statement made by Mr Kara’s counsel that those reports were “probably not admissible…because you can only have one forensic report” (T3), no ruling was made by the Arbitrator concerning the relevance or otherwise of the provisions of cl 43 of the 2003 Regulation, and
(b) that clause, which has since been repealed following the commencement of the 2010 Regulation, made provision for the limitation of the number of forensic medical reports, as defined, that may be relied upon by a party in proceedings before the Commission. Clause 49 of the 2010 Regulation, subject to the Saving provision noted below, presently governs matters formerly addressed by the 2003 Regulation. Of significance, in the present circumstances, the definition of “forensic medical report”, as it appeared in the 2003 Regulation, has been amended by the current Regulation.
Having regard to the circumstances summarised immediately above, and because of some doubt as to the relief sought before the Arbitrator concerning an order with respect to s 60 expenses relating to treatment of Mr Kara’s cervical spine, the following direction was issued by the Commission on 2 February 2011:
“The following directions are made in this matter:
1.   The parties have given attention in submissions to the admission of forensic medical reports tendered by the respondent being reports of Dr Breit, Dr Habib and Dr Bhatia.
2.   The attention of the parties is drawn to the commencement, on 1 February 2011, of the Workers Compensation Regulation 2010 and, in particular, Regulation [sic, clause] 49 therein.
3.   Submissions by the parties as to the relevance, or otherwise, of the Regulation to the admission of the forensic reports are invited.
4. The appellant, at [2] of submissions on this appeal, asserts that the claim before the Arbitrator included one for ‘Sec. 60 expenses in relation to the cervical spine.’ At the hearing of this appeal submissions concerning any relief sought by the appellant for an order in respect of s 60 expenses are invited.”
The matter proceeded to hearing on 17 February 2011. Mr Petrie of counsel appeared for Mr Kara and Mr Wardell, solicitor, appeared for the respondent. It was acknowledged by the parties that the evidence of Dr Breit, Dr Habib and Dr Bhatia had been admitted into evidence by the Arbitrator without consideration being given to the provisions of cl 43 of the 2003 Regulation which was then in force. Clause 43(1) limited the number of forensic medical reports that may be relied upon by a party to proceedings before the Commission to one such report. The Regulation made provision for the admission of additional forensic medical reports in the following circumstances:
“Clause 43(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.”
The term “forensic medical report” was defined as follows:
“Clause 43(4)
(a) means a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.”
Dr Breit’s report dated 26 June 2007 was provided following an examination arranged by the respondent’s insurer. The reports of Dr Habib dated 8 December 2006 and of Dr Bhatia dated 18 April 2007 are each addressed to Mr Kara’s solicitors. Each of those practitioners was qualified to provide a report for the purposes of the claim brought in the Commission in 2007 noted at [3] above.
It is common ground that all three reports are forensic medical reports as were defined in cl 43 of the 2003 Regulation. Each formed part of the respondent’s case. In similar circumstances in the past, the Commission has, on appeal, required a party to elect which of the forensic medical reports it proposed to tender. Any other report or reports were excluded from the evidence considered on review.
The 2003 Regulation was repealed in its entirety and replaced by the 2010 Regulation which came into operation on 1 February 2011: cl 185. The Saving provision in the 2010 regulation is found in cl 186 which provides:
“Saving
Any act, matter or thing that, immediately before the repeal of the Workers Compensation Regulation 2003, had effect under any of that Regulation continues to have effect under this Regulation.”
The subject of forensic medical reports relied upon by parties to proceedings is now addressed by cl 49 of the 2010 Regulation which provides:
“49 Restrictions on number of medical reports that can be admitted
(1)   In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)   A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)   Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that speciality.
(4)   In this clause:
forensic medical report, in relation to a claim or dispute:
(a)means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c)does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
Having regard to the amendment of the definition of forensic medical report, an application was made on behalf of the respondent at the hearing of this appeal seeking an order admitting the reports as additional evidence. Such an application is governed by the provisions of s 352(6) of the 1998 Act in its terms as they appeared before amendment of that section which was effected by the commencement of the Workers Compensation Legislation Amendment Act 2010. The sub-section provided as follows:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
The respondent’s application concerning the admission of the forensic medical reports was made upon the basis that the Commission may consider that such formal application was necessary, notwithstanding that the Arbitrator had admitted the documents into evidence. That application was opposed by counsel appearing on behalf of Mr Kara who submitted that at the date of hearing before the Arbitrator the effect of cl 43 was that there was an absolute prohibition against admission of all but one such report. It was argued that the respondent should be required to elect as to which of those three reports it wished to rely upon in the proceedings and that the other two reports should be excluded. No submission was put by Mr Kara concerning the relevance or otherwise of the repeal of the 2003 Regulation and the enactment of cl 49 of the 2010 Regulation other than that the latter was not “retrospective” in its operation.
The respondent argued that the question of admissibility of the three forensic reports is to be determined on this appeal by reference to the provisions of cl 49 of the 2010 Regulation. The reports of Dr Habib and Dr Bhatia should be admitted on the respondent’s application given that each report had been obtained in circumstances addressed by cl 49(4)(c). The reports had been obtained by the solicitors acting for Mr Kara in respect of “another claim or dispute” within the meaning of that sub-clause. That claim or dispute was that which was brought before the Commission in 2007 which concluded following the entry of an award.
The report of Dr Breit is clearly a forensic medical report within the definition found in cl 43 and would have, if nominated by the appellant, remained in evidence as admitted by the Arbitrator at the hearing. Had it not been for the intervening repeal of the 2003 Regulation, and the enactment of the new definition of forensic medical report as found in the 2010 Regulation, the reports of Dr Habib and Dr Bhatia would have, as has been the practice before the Commission in the past, been excluded on this appeal. I am of the view that the repeal of the 2003 Regulation and the enactment of the 2010 Regulation has removed any basis upon which Mr Kara may take objection to those reports remaining in evidence.
I have reached that view given that there was no order made excluding the reports, or otherwise, under cl 43 of the 2003 Regulation. There is thus no requirement to consider the relevance or otherwise of the Saving provision found in cl 186. The reports are in evidence and have been considered by the Arbitrator in reaching his determination. Whilst Mr Kara is correct in stating that, at the time of the arbitral hearing, there was an absolute prohibition against the admission of more than one of the subject reports, the reports nonetheless form part of the evidence and remain before the Commission on this appeal. The question of admissibility of the reports is presently governed by the provisions of the 2010 Regulation. In those circumstances I conclude, as anticipated by Mr Wardell in his submissions, that there is no necessity to make any order concerning the admission of the reports as additional evidence on this appeal. If I am wrong in so concluding, I note my view that the circumstances concerning the evidence found in those reports are such that an order as sought seeking admission should be made. The nature of the reports, the provisions of s 352(6) of the 1998 Act, as it stood before amendment, and cl 49(4)(c) of the 2010 Regulation would permit such an order.

At the hearing Mr Kara sought leave to withdraw his application seeking an order pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) with respect to medical treatment of his alleged neck injury. That amendment to the claim was formally opposed by the respondent. No submission was advanced in support of that opposition given the respondent’s concession that a claimant may seek to withdraw such a claim at any stage of proceedings regardless of consent by the employer to such amendment. The amendment was granted during the course of the hearing. That amendment is relevant to the manner of adjudication of this appeal, and was raised by the respondent in relation to the question of costs of the appeal. Both those matters are addressed below.

THE ARBITRAL PROCEEDINGS

A transcript of the arbitral proceedings has been produced and made available to each party. It is recorded by the Arbitrator that Mr Kara had “discontinued” his claim in respect of weekly benefits and that he “did not press” his claim for permanent impairment compensation as a result of injury to the lumbar spine. It is also recorded that Mr Kara persisted with his claim for medical expenses (s 60 of the 1987 Act) in respect of injury to the lumbar spine.
The documentary evidence which was before the Arbitrator is noted at [18] of his Reasons. No oral evidence was given at Arbitration.

Mr Kara’s evidence

It is proposed to summarise only that evidence which relates to the issue in dispute on this appeal, being the correctness or otherwise of the Arbitrator’s finding that Mr Kara did not receive an injury to his cervical spine in the fall sustained by him on 5 December 2003.
Mr Kara relied upon that evidence to be found in his statement made on 16 July 2010. He states that he commenced employment with the respondent on 3 April 2003 as a labourer. His duties included the preparation of meat, pulling tubs, lifting tubs and cutting meat. On 5 December 2003, as he was helping a co-worker lift a tub of mince meat into the cool room, he slipped and fell on his right side causing injury to his right hip, right elbow, right shoulder and back.
Mr Kara further states that since the subject injury he has suffered “constant headaches”. He thought nothing of his headaches and was concentrating on treatment of his shoulder injury. In or about May 2007 he experienced stiffness in his neck and had severe pins and needles and tingling in his left arm down to his left wrist, left hand, index and middle fingers. He consulted Dr Emin following which a number of investigations were conducted. Mr Kara was then referred to Dr Yiannikas. Following consultation with Dr Yiannikas, an MRI investigation was conducted on 15 May 2007.
A short time later Mr Kara consulted Dr Davé concerning the condition of his neck. He was referred by Dr Davé to Dr Manohar. It is stated that Dr Manohar suggested that he have a nerve block injection by way of treatment of his neck pain and tingling and pain in his left arm and hand. He underwent that treatment and the tingling and numbness in his left arm and hand was “reduced by about 50%.” He states that he continues to get pain in his neck as well as other parts of his body. The neck pain continues to radiate into his left arm, fingers and shoulders. The balance of those matters addressed in Mr Kara’s statement concern the other injuries received in the subject fall.
Mr Kara relied upon medical reports provided by a number of expert medical witnesses including his general practitioner Dr Aladdin Abdullah Emin (three reports), Dr Chandra Davé, orthopaedic surgeon (three reports), Dr David Manohar, consultant physician (four reports), Dr Sikander N Khan, consultant surgeon (two reports) and Dr Nadeem Sheikh, rehabilitation and pain management consultant (one report). Reliance is also placed upon the contents of a number of medical certificates, a report from Mr Williams, physiotherapist, and reports concerning radiological studies. The detail of these reports is addressed below.

The respondent’s evidence

The respondent relied upon the evidence of a number of medical practitioners as found in reports prepared by them. The evidence of Dr Tommasino Mastroianni specialist in occupational medicine, as found in the Medical Assessment Certificate issued by him on 11 January 2008 is in evidence. Also relied upon by the respondent were reports from Dr Robert Breit, orthopaedic surgeon, Dr C Yiannikas, consultant neurologist, Dr Manohar (two reports), Associate Professor James van Gelder, Dr Davé, Dr Sheikh M Habib, consultant in orthopaedics and trauma, Dr S P Bhatia, surgeon and Dr Con Kafataris, injury management consultant.

Mr Kara’s submissions

Submissions put on behalf of Mr Kara concerning the allegation of injury to the neck drew attention to the compensation claim form he completed in January 2004. Counsel noted that Mr Kara had nominated the neck as one of those body parts injured in the subject fall. It was put in argument that there was evidence of contemporaneous complaint and treatment concerning the neck. That evidence included the report of Dr Davé dated 25 February 2004 in which it is noted that an MRI scan of the cervical spine had been conducted at about that time. That report included reference to the appropriateness of cervical spine traction, mobilisation and neck care program. The evidence of Dr Davé and Dr Emin concerning causal nexus between the subject fall and Mr Kara’s neck injury were noted in the course of submissions. In response to matters raised by the Arbitrator, counsel advanced the argument that the question as to whether the consequences of any neck injury “had resolved” was a matter for an AMS to determine.

The respondent’s submissions

Counsel appearing on behalf of the respondent placed reliance upon the evidence of Dr Breit as found in his report dated 26 June 2007. It was noted that Dr Breit expressed the view that Mr Kara suffered from cervical spondylosis which pre-dates the subject injury. Dr Breit further noted in his report that Mr Kara’s neck pain had largely settled. The stiffness complained of by Mr Kara in his neck was, it was argued, entirely due to a pre-existing degenerative condition as stated by Dr Breit. Reliance was placed upon that practitioner’s opinion that the left C7 nerve root impingement symptoms had occurred recently and were unrelated to the original injury or to the shoulder surgery. The general submission was put that the evidence of Dr Breit, Dr Habib and Dr Bhatia supports a conclusion that Mr Kara’s neck condition is unrelated to the incident on 5 December 2003. Counsel also argued that it was significant, when considering the question of causation of the neck symptoms, that the evidence reveals that it was not until May 2007 that there was “any suggestion of radicular symptoms arising from the neck”. In response to a question put to counsel by the Arbitrator, it was accepted on behalf of the respondent that, should the Arbitrator find as a fact that there was “simply a soft tissue injury” to Mr Kara’s neck in the subject fall, the question of assessment of impairment must go to an AMS.

The Arbitrator’s determination

It was noted by the Arbitrator that Mr Kara had discontinued his claims in respect of weekly payments and for lump sum compensation in respect of injury to his lumbar spine. It was also noted that Mr Kara did press his claim in respect of medical expenses (s 60 of the 1987 Act) in respect of treatment of his lumbar spine.
The Arbitrator noted that the respondent put in issue:
(a) injury to the cervical spine, and
(b) injury to the lumbar spine giving rise to necessity for the treatment thereof.
Following a summary of submissions put on behalf of each party the Arbitrator proceeded to consider the question as to the occurrence or otherwise of injury to Mr Kara’s cervical spine. Following a thorough summary of relevant evidence and authority, a finding was made that:
“[Mr Kara] did not suffer an injury to his cervical spine on 5 December 2003. The injurious event which occurred on that date did not give rise to significant C7 radiculopathy which was diagnosed in [Mr Kara’s] cervical spine in about May 2007, nor to any other pathology shown in the MRI of 3 February 2004 of Dr Snodgrass. The injury sustained by [Mr Kara] on 5 December 2003 caused an increase in symptoms in the neck which had resolved, at latest by the time [Mr Kara] saw Dr Habib on 4 December 2006” (at [59]).
The Arbitrator concluded:
“I do not find that the injury alleged to [Mr Kara’s] cervical spine in the accident of 5 December 2003 was anything other than an increase in the symptoms in the neck which had resolved by the time [Mr Kara] was seen by Dr Habib in December 2006” (at [59]).
Having made the findings noted immediately above the Arbitrator made reference to the provisions of s 321(4) of the 1998 Act and stated “assessment of [Mr Kara’s] cervical spine will not be remitted to the Registrar for assessment under Part 7 of Chapter 7 of the 1998 Act”. An award for the respondent “for injury to the cervical spine” was then pronounced (at [60]).
The balance of matters addressed and determined by the Arbitrator are not the subject of challenge on this Appeal.

SUBMISSIONS, DISCUSSION AND FINDINGS

It should be noted at the outset that the only injurious event alleged by Mr Kara was that which occurred on 5 December 2003. The particulars of injury which appear at Part 4 of the Application to Resolve a Dispute include allegations of frank injuries occurring on two separate dates as well as injury resulting from the nature and conditions of employment. Those additional allegations of injury were abandoned by Mr Kara at the hearing before the Arbitrator. Whilst no application had been made seeking formal amendment of the application, counsel then appearing on behalf of Mr Kara is recorded as stating at (T9) “the only evidence is of the injury on 5 December”.
The appellant’s challenge to the Arbitrator’s findings is founded upon the following matters:
(a)     it is argued that the reasons expressed by the Arbitrator “seem self contradictory”;
(b)     the Arbitrator relied upon the evidence of Dr Breit, Dr Habib and Dr Bhatia which evidence had been wrongly admitted, and
(c)     the Arbitrator’s determination concerning the allegation of neck injury was against the evidence.
The suggested “contradiction” expressed by the Arbitrator is to be found at [59] of Reasons which I have attempted to summarise at [39] above. The Arbitrator expressly found that Mr Kara did not receive injury to his cervical spine on 5 December 2003. Reference was made by the Arbitrator to the pathology which is demonstrated in the MRI investigation carried out by Dr Snodgrass in February 2004, as well as the “significant C7 radiculopathy” diagnosed in May 2007. The Arbitrator’s finding was that the injurious event of 5 December 2003 did not “give rise to” either of those matters. The suggested contradiction appears where the Arbitrator stated that “the injury sustained by [Mr Kara] on 5 December 2003 caused an increase in symptoms in the neck which had resolved, at latest [by December 2006]”. That finding, together with the conclusion which I have noted at [39] above, contradicts, it is argued, the Arbitrator’s earlier express finding that Mr Kara did not receive injury to his neck.
The respondent, in response to the argument suggesting “contradiction”, concedes that the “wording adopted by the Arbitrator was perhaps inelegant”. It is argued that there exists a “primary finding” that Mr Kara did not receive injury to his neck in the subject fall. It is put that the Arbitrator’s “further comments can be regarded as nothing more than obiter comments placing his findings in context”.
It is also argued by the respondent that the Arbitrator’s comments “must be considered in light of the way in which the case was presented”. It was Mr Kara’s case that he had not suffered injury to, nor symptoms in, his neck prior to the fall. The Arbitrator’s finding that Mr Kara did in fact suffer from neck pain prior to the fall was, it is argued, open to him on the evidence. The respondent further seeks to support the Arbitrator’s finding concerning antecedent symptoms in the neck given that he had provided “detailed reasons” for reaching that conclusion. The respondent’s argument proceeds to assert that, upon the basis of his finding as to earlier symptoms, the Arbitrator “clearly considered that although there may have been an increase in neck symptoms at about the time of the incident of 5 December 2003, such symptoms were not initiated by that incident and that the incident did not produce any pathological injury to the neck”. The respondent notes in the course of that submission that Mr Kara “did not present a case on the basis of an aggravation of a pre-existing condition”.
The respondent further argues that it is clear that the Arbitrator had in mind “the notion that ‘injury’ involves a consideration of not only the injurious event but also the physiological or pathological consequences of that injury”. Reference is made to the decisions in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (Lyons) and Peric v Lee and Ran t/as Pure & Delicious Healthy [2009] NSWWCCPD 47; 7 DDCR 215 (Peric).
The arguments raised on behalf of the respondent have considerable force. It is clear that the Arbitrator has had regard to relevant authority including the decisions of Lyons and Peric when he addressed the question as to the occurrence or otherwise of injury to the neck. Notwithstanding those matters, it is clear that the Arbitrator has found that, as a consequence of the fall, Mr Kara experienced an increase of symptoms in his neck. The acceptance of the manifestation of such symptoms must represent a finding that an injury within the meaning of s 4 of the 1987 Act had been received by Mr Kara at the relevant time. The evidence clearly establishes that at the time of the fall Mr Kara suffered significant degenerative changes in his neck. Whilst no finding was made by the Arbitrator, those symptoms may have evidenced aggravation of those changes by the trauma experienced in the fall. I acknowledge the respondent’s argument that Mr Kara’s allegation that he had received no antecedent injury or experienced earlier symptoms appears to exclude an allegation of aggravation of pre-existent degenerative changes. However the injury details which appear at Part 4 of the original application includes “injury description” as being “by way of cause and aggravation”. Whilst the details particularised are poorly drafted and have been the subject of unspecified amendment as noted at [42] above, I consider that the Arbitrator’s findings of fact concerning the antecedent degenerative condition, pre-injury neck symptoms and the increase of symptoms following the fall must constitute a finding that injury to the neck was received at that time. In the circumstances I accept Mr Kara’s argument that the Arbitrator’s reasons are, to an extent, “contradictory” given the inconsistency which exists between the express finding of no injury to the neck and the finding of increased symptoms in that part of the body occurring as a result of the fall.
Mr Kara’s argument concerning the Arbitrator’s wrongful admission and subsequent reliance upon the reports of Dr Breit, Dr Habib and Dr Bhatia is well founded. As I have earlier noted between [15] and [25] above the admission of those reports occurred in contravention of the provisions of the now repealed 2003 Regulation. As earlier noted, the relevance of cl 43 of that Regulation was not argued before the Arbitrator. It is, however, unnecessary to consider any consequence of Mr Kara’s failure to object to the tender of all three medico-legal reports given the ruling made on this appeal at [25] that those reports remain in evidence before the Commission.
The Arbitrator’s reasoning concerning the allegation of injury to the neck which I have addressed between [44] and [48], together with the erroneous admission of all three forensic medical reports, require a review of the evidence to ascertain the correctness or otherwise of his finding that no neck injury was received and the entry of an award in favour of the respondent in respect of that allegation. Such a review necessarily requires consideration of those arguments advanced on behalf of Mr Kara that the Arbitrator’s finding was against the evidence.

Did Mr Kara receive injury to his neck on 5 December 2003?

The evidence, including the compensation claim form presented by Mr Kara in early 2004 and the medical evidence relied upon by him, supports his allegation of neck injury. Mr Kara reported such injury to the insurer and the medical evidence records complaint made by him concerning neck symptoms following the occurrence of his fall. It is reasonably clear that Mr Kara had complained to Dr Mahony of neck pain when that practitioner was consulted in early 2004. There is no report from Dr Mahony. However there is in evidence a radiological report of Dr P Fung dated 12 January 2004 being a study of Mr Kara’s cervical spine. That report, addressed to Dr Mahony, stated:
“The range of cervical movement is restricted both in flexion and extension but the alignment is normal. Degenerative spondylosis is noted in the mid cervical area. There is marginal osteophytic formation. The disc spaces at C4/5 and C5/6 are reduced consistent with degenerative disc lesion. There is also encroachment of the exit foramina on both sides.
No osseous cervical rib lesion or other abnormality is noted.”
The evidence of Dr Davé, as has been emphasised in the course of submissions put on behalf of Mr Kara, reveals that complaint of neck pain and disability had been made by him during a consultation in February 2004. The treatment then suggested by Dr Davé is noted at [35] above.
Dr Emin, Mr Kara’s general practitioner, expressed the opinion that the symptoms “are consistent with his radiculopathy” and that he is “quite confident that [Mr Kara’s neck pain] is work related”. He also states in his report dated 30 July 2007 that Mr Kara had never suffered from neck pain before the subject fall. The Arbitrator, with whom I respectfully agree, found otherwise. I so conclude having regard to that evidence addressed by the Arbitrator in his Reasons, as well as the evidence of Mr Gaven Williams, physiotherapist, who, in a report dated 23 September 2004, recorded a history that Mr Kara had “been troubled by mild neck stiffness and headache” prior to the fall.
The expert medical evidence relied upon by the respondent concerning the allegation of neck injury is that of Dr Breit, Dr Habib and Dr Bhatia. Those practitioners have recorded in their reports the occurrence of neck pain following the subject fall. The first occasion on which Mr Kara was examined by Dr Breit, being 11 January 2007, he is recorded as complaining of neck pain that “had largely settled but he was troubled by headaches”.
Dr Habib in his report of 8 December 2006 recorded that Mr Kara had suffered “intermittent neck discomfort which was considerably less compared to the level soon after the fall in December 2003”. It was Dr Habib’s opinion that the neck pain “has now resolved to a large extent, except for the minor symptoms referrable to the degenerative changes”.
Mr Kara was examined by Dr Bhatia in April 2007 at which time complaints recorded by that practitioner included the following:
“He gets headaches. Had neck pains which are gone but the headaches are there”.
The respondent draws attention to the appearance of “radicular symptoms” which, as recorded in the medical evidence, made their first appearance in late April or early May 2007. That fact is made clear from the evidence of Dr Khan who recorded in his report dated 25 January 2010:
“His neck pains were improving but in May 2007 he developed severe paraesthesiae in the left arm and fingers”.
The evidence, excluding that of Dr Emin, which I have attempted to summarise immediately above leads me to conclude on this review that it is more probable than not that Mr Kara received injury to his neck when he fell in the course of his employment on 5 December 2003. That injury caused painful symptoms in his neck and perhaps headache. The injury required treatment which had been provided by Dr Emin, Dr Manohar and Dr Davé. The evidence strongly suggests that the symptoms Mr Kara experienced in his neck improved with the passage of time. Having regard to the history as recorded by Dr Bhatia in April 2007 I conclude that Mr Kara’s neck pains had ceased by the time of that examination. However Mr Kara at that time continued to experience headache.

The medical evidence clearly establishes that Mr Kara first developed left sided neck pain and paraesthesia extending down his left arm in late April or early May 2007. Those symptoms have improved following treatment.
Having regard to the arguments advanced before the Arbitrator it is clear that the real issue in dispute concerned the relevance or otherwise of the radicular symptoms, which first appeared some 40 months after the fall, to the trauma experienced in that incident. At the hearing before the Arbitrator the fact of injury was in issue as was the question of the respondent’s liability for medical expenses. As noted above at [26] the claim brought by Mr Kara before the Arbitrator has been amended to discontinue the claim for medical expenses arising from the neck injury.
Following the amendment of Mr Kara’s claim, which was made at the hearing of this appeal, the only issue in dispute concerning liability was the question as to the occurrence, or otherwise, of a neck injury. Had there been a necessity to determine the question of the respondent’s liability to make payments pursuant to s 60 of the 1987 Act the Commission, on this appeal, would have needed to address the question as to whether the pathology and subsequent symptoms which had been caused by the injury as found had ceased or otherwise. Such a circumstance existed in the matter of Peric where the dispute required determination of liability issues concerning the manner in which an injury occurred, including whether the worker had received an electric shock and whether those events caused orthopaedic and psychological injury. The dispute in Peric concerned entitlement to weekly compensation, medical expenses and a lump sum. The circumstances which prevailed in Peric may be distinguished from the present matter. Here, following amendment, the only question as to liability concerned the dispute as to the occurrence of injury.
The only other matter in dispute is whether, as a result of the neck injury, Mr Kara has suffered permanent impairment. That dispute is a medical dispute as defined by the provisions of s 319 of the 1998 Act.
The scheme of the Acts includes provision for the manner of determining such a claim. Section 65(3) of the 1987 Act provides:
“If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
The Registrar may not refer a medical dispute concerning permanent impairment of an injured worker for an assessment under Part 7 Chapter 7 of the 1998 Act in circumstances where liability is in issue and has not been determined by the Commission: s 321(4)(a).
The only liability issue has been determined. I have earlier found that Mr Kara received injury to his neck in the subject fall. The medical evidence suggests that it is probable that the trauma caused an aggravation of the underlying degenerative disease which pre-existed the injury. The question concerning any resultant whole person impairment is a medical dispute which the Commission has no jurisdiction to decide. That dispute may only be determined by an AMS following referral by the Registrar.
The respondent argues that the Arbitrator effectively decided that the pathological consequences of injury ceased by December 2006. That, it is argued, may be seen in his reasoning as expressed at [52] of Reasons.
The respondent seeks to uphold that finding on this appeal. The difficulty which arises in the present circumstances is that, accepting that such a finding was made, the Arbitrator when so concluding had failed to consider the further liability dispute being Mr Kara’s entitlement or otherwise to a s 60 order. The order made was an award for the respondent in respect of the alleged neck injury.
Had the Arbitrator correctly analysed the claims (both as to injury and in respect of s 60 expenses) any finding made as suggested by the respondent may have led to an order pursuant to s 60 limited to a period of time, and the entry of an award for the respondent with respect to Mr Kara’s claim for lump sum compensation. Such conclusions were reached in Peric. Those findings were confirmed on appeal.
The difficulties which arise in matters such as the present involve a consideration of the nature and extent of an Arbitrator’s jurisdiction to determine disputes in circumstances where the claim includes one for a lump sum. Those difficulties are addressed in the decision of Roche DP in Greater Taree City Council v Moore [2010] NSWWCCPD 49 (between [93] and [103]). The reasoning there expressed, with which I respectfully agree, makes it clear that, in circumstances where liability with respect to the occurrence of injury is in dispute and the only claim before the Commission is in respect of lump sum entitlement, the proper course is that the Arbitrator determines the liability question and must, if it arises, refer the question of any whole person impairment to the Registrar for referral to an AMS. That is the position on this appeal, and the appropriate order remitting the matter for such referral is made below. The unusual circumstances of the present case required a review of the Arbitrator’s determination given the matters noted at [51] above. A consequence of the amendment which discontinued the claim for medical expenses was that the only remaining liability question concerned the disputed neck injury. The only claim relevant on appeal was in respect of lump sum entitlement. That, being a medical dispute, must be determined by an AMS.
It may be seen that I have concluded that the Arbitrator has erred in the manner in which he has adjudicated the dispute before him. In the circumstances the award entered by the Arbitrator noted in [2] of the Certificate of Determination should be revoked and substituted with the order set forth below.

DECISION

Paragraph [2] of the Arbitrator’s Certificate of Determination dated 28 October 2010 is revoked and is substituted with the following order:
“2. The applicant’s claim with respect to permanent impairment resulting from injury to the cervical spine is remitted to the Registrar for referral to an Approved Medical Specialist for assessment pursuant to Chapter 7 Part 7 of the Workplace Injury Management and Workers Compensation Act 1998.”
The balance of the matters appearing in the Certificate of Determination dated 25 October 2010 are confirmed. I direct that this determination be brought to the attention of the Approved Medical Specialist to whom the matter is referred.

COSTS

The respondent, in submissions at the hearing, opposed any order as to costs of this appeal being made in favour of Mr Kara. It was put that the amendment made to the claim at the hearing of the appeal had significant practical consequences and may significantly influence the nature of the determination made on appeal. It is correct to assert that the amendment permitting withdrawal of the claim for medical expenses required a different approach to the adjudication on appeal than was required when the matter was argued before the Arbitrator. It was asserted that such a shift in the manner of presenting the claim was somewhat “unpalatable”. The respondent’s view may easily be understood. However, it has been determined on this appeal that the Arbitrator erred and that error has required correction. In the circumstances I consider it appropriate that an order be made that the respondent pay the appellant’s costs of the appeal.

Kevin O’Grady

Deputy President
3 March 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE